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THE PROOF AT TRIAL DID NOT DEMONSTRATE PLAINTIFF INHALED SUFFICIENT LEVELS OF ASBESTOS WHEN USING DEFENDANT’S TALCUM POWDER TO HAVE CAUSED HER MESOTHELIOMA; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant J & J’s motion to set aside the verdict in the asbestos-exposure trial should have been granted. Plaintiffs, as a matter of law, did not demonstrate the exposure to asbestos in defendant’s talcum powder caused plaintiff’s mesothelioma:

At trial, plaintiffs failed, as a matter of law, to carry their burden “to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . To make such a showing, a plaintiff must present expert testimony providing a “scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease” … . Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question … . Thus, the medical expert’s testimony that mesothelioma could have resulted from “a significant exposure above normal background levels” was insufficient. Matter of New York City Asbestos Litig., 2022 NY Slip Op 04611, First Dept 7-19-22

Practice Point: This is another decision in a group of four decisions released on the same day by the First Department finding plaintiff’s expert evidence failed, as a matter of law, to demonstrate plaintiff had inhaled enough asbestos to have caused lung disease.

 

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PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEMONSTRATE PLAINTIFF... PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED...